1309582 (Refugee)

1309582 (Refugee) [2016] AATA 3645 (24 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1309582
COUNTRY OF REFERENCE:                  Sri Lanka
MEMBER:Shahyar Roushan
DATE:24 March 2016
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 24 March 2016 at 11:37am
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of Sri Lanka, a Hindu and of Tamil ethnicity. He was born in [year]. He arrived in Australia by boat in June 2012. He applied for the visa [in] November 2012 and the delegate refused to grant the visa [in] July 2013.
The applicant essentially claims that, in 2006, he was interrogated and videotaped by the authorities on two separate occasions. He further claims that between 2010 and July 2011, he was harassed and threatened by the CID and a paramilitary group. He fears being harmed for his imputed political opinion and having departed Sri Lanka illegally.
The issues in this case are whether the applicant has a well-founded fear of persecution for one or more of the five reasons set out in the Refugees Convention in Sri Lanka and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Delegate
Application for a Protection visa
In a statement attached to his application for a protection visa, the applicant made the following claims:
He was born in [his home village], a village in [City 1]. He has [specified siblings]: one of his [siblings] is in [another country] and one in Sri Lanka. [One sibling] is in [a different country]. His father remarried after his mother died in 1997. He has no contact with his father.
In January 2006 when he was on the beach with friends for a party, the Army arrived and surrounded the people on the beach. [A number of] teenage school children were shot and killed. The Army was photographing people in the protests and the funeral after this event. From the photographs, the Army was rounding up different people over a period of time. From time to time his village was surrounded and young people were taken for questioning. He was taken two times for this type of questioning over 4 or 5 hours. People were beaten if they did not answer correctly. That incident made him want to leave the country and, in January 2007, he travelled to [Country 1] to escape Sri Lanka.
[In] August 2008 he returned to Sri Lanka. He stayed until January 2009 with [a relative] in Colombo and after that he went to [City 1]. He got a job in April 2009 and married in October 2009.
In January 2010, the CID picked him up when he was on his way back home. He was on a motor bike and they were in a four wheel drive jeep. They asked him questions about himself. There was a Tamil man in the truck who said they were searching people who had been in rehabilitation. They wanted information about the LTTE. Subsequently, the Tamil man, [Mr A], who is a member of the Pillaiyan group, contacted him by telephone. [Mr A] threatened him and accused him of being an LTTE supporter. He told the applicant that he would be taken in for questioning. The reason for this harassment was partly because he had spent time out of Sri Lanka and they might have thought that he is a wealthy person who could give them money.
The applicant has been ‘hassled’ twice in 2010. In February 2011, the CID visited his house and threatened his [various relatives]. He was never home at those times as he was on ‘fieldwork’ outside [City 1]. After that a white van was waiting in front of his house on two separate occasions. There was no numberplate on the van. The family decided to close down all the doors and stay inside.
[In] August 2011, the applicant complained to [Agency 1] in [City 1] after a stone was thrown from the white van and broke a window in his house. The complaint to [Agency 1] was made after he sent his wife to [another city] to [a different relative’s] place because he was worried for them both.
A white van followed him on one occasion when he was going to work. This was in about July 2011. He was on his motorbike and he reached his office and went inside and the white van left. He fears they might have been seeking an opportunity to abduct him.
After he had sent his wife and his [relative] away, he also left his house and rented it in November 2011. He went to [Town 1], about 5 kilometres from [City 1], and rented a room from people he knew. He did not go to work during this period because he was too afraid to travel there. He left Sri Lanka at the end of May 2012. He was taken secretly from [City 1] to Colombo and then Negombo. He then left Sri Lanka.
The applicant fears serious harm and persecution by the CID or the Army if he returns to Sri Lanka. He feels that his life is in danger because the CID are pursuing him. He has been asked for money by people associated with the Pillaiyan group and he knows that even paying will not be the end of the problem for him.
In support of his application for a protection visa, the applicant referred to news reports online, dating back to 2010, which indicate that Tamil youth are still being harassed. It states that every 5 days one person disappears. These disappearances are the work of the CID.
In a submission provided in support of the application for a protection visa, dated [in] October 2012, the applicant’s representative summarised the applicant’s claims and submitted that the applicant lived for much of his life in the [City 1] area and he has the profile of a young Tamil who is currently being harassed and targeted by the CID. It was submitted that like many young men he had to do something to help the LTTE cause and the claimant said his work as [an occupation], even for a limited period, makes him a suspect and target for the CID.
It was submitted that the applicant is at risk of persecution for the reasons of his ethnicity as a Tamil in Sri Lanka; his actual or imputed political opinion as a Tamil in Sri Lanka who is perceived to be against the government; his membership of the particular social group of young Tamil men who have either been active in, or are suspected to have been active in, the LTTE; and his membership of the particular social group of young Tamil men who, in addition to the grounds above, have escaped to, and claimed asylum in, a western country.
The submission referred to reports from independent organisations, including the 2011 United States State Department’s report on human rights in Sri Lanka, and submitted that Sri Lanka is still deeply traumatised and divided and where it is impossible to state with confidence that the Tamil population in the north and the east receive state protection. The submission referred to a 2012 International Crisis Group report and views expressed by Robert C. Oberst, a Professor of Political Science at Nebraska Wesleyan University, emphasising the militarisation of the Northern & Eastern Provinces. The submission also referred to a number of reports, dating back to 2012, in relation to the treatment of Tamils returning from abroad. It was submitted that the applicant is at a real risk of being significantly harmed if returned to Sri Lanka and that country information supports the view that the Sri Lankan authorities will not protect the applicant from the significant harm as they are the perpetrators of the harm the applicant has experienced in the past.
Entry Interview
Following his arrival by boat, the applicant was interviewed (entry interview) by the department [in] August 2012. The information the applicant provided in connection with the interview is contained in a form (the entry form) signed by the applicant (see folios 96-106 of the departmental file). The interview was conducted with the assistance of an interpreter.
At the entry interview the applicant provided an account of his claims which were essentially consistent with what he has outlined in his application for a protection visa.
Protection Visa Interview
The applicant was interviewed by a delegate of the Minister [in] March 2013. Where relevant the applicant’s oral evidence to the delegate is discussed below.
Post-Interview Submissions
Following the interview, the applicant’s representative made a submission to the Department, dated [in] March 2013. The applicant’s representative stated that there were some errors in the submission of [October] 2012 and that the Department should ignore that submission.
The submission reiterated the applicant’s claims and referred to country information, dating back to 2012, in relation to the human rights situation in Sri Lanka and the attitude of the authorities towards returnees. These reports included a March 2012 report by the International Crisis Group relating to minority rights, a September 2012 report by Freedom House, the 2011 US Department of State report on Human Rights Practices in Sri Lanka, and a September 2012 Briefing by the UK Freedom from Torture.
Application for Review
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
The applicant appeared before a differently constituted Tribunal (the first Tribunal) on 27 November 2014 to give evidence and present arguments (the first hearing). The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
The first Tribunal was unable to complete the review and the matter was reconstituted. The applicant appeared before the presently constituted Tribunal (the second Tribunal) on 3 February 2016 to give evidence and present arguments (the first hearing). The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.
Where relevant, the applicant’s oral evidence at the first and the second hearings is discussed below.
Post Hearing Submissions
Following the second hearing, the applicant’s representative made a submission to the Tribunal, dated 17 February 2016, stressing that the applicant’s fears are well-founded. The submission referred to the prevailing human rights situation in Sri Lanka and contended that internal relocation in not an option for him. It was submitted that the applicant has not embellished or exaggerated any of his claims in order to strengthen his claims.
The submission provided a ‘synopsis’ of country information. The information included an extract from a January 2016 report by the Integrated Regional Information Networks (IRIN), referring to a new report by the International Truth and Justice Project, which is based on the testimonies from 20 victims who were abducted during the past year; a February 2014 Amnesty International report (Sri Lanka: Surpassing Calls for Justice), noting a pattern of harassment and threats against human rights defenders, political activists and critical journalists; a May 2015 report by the Oakland Institute relating to the occupation of ‘high security zones’ in the North and the East by the army. It was submitted that this information is evidence of major human rights violations still being underway and the Sri Lankan army torturing and detaining people suspected of acting against the government.
With regard to failed asylum seekers, it was submitted that, if the applicant were to return to Sri Lanka as a failed asylum seeker, he would be handed over to the CID for questioning, which, in turn, may reveal his previous experiences with the CID. This may lead to prolonged detention and interrogation, during which he could face torture. The submission referred to the 2012 UNHCR Guidelines in noting that many returnees are contacted at their home by the army or the police upon return, and some are monitored; and that some sources have reported recent cases of former Sri Lankan (in particular Tamil) asylum seekers who were allegedly detained, ill-treated or tortured after being forcibly returned. In relation to the treatment of failed asylum seekers, the submission also referred to, and extracted from, a May 2015 report by the Edmund Rice Centre relating to returned asylum seekers from Australia; a 2012 report by Tamils Against Genocide; and a September 2015 report by OHCHR, as well as an August 2015 article by the Guardian relating more generally to continuation of torture of Tamil detainees despite the change in the government.
The submission expressed disagreement with DFAT’s view on the prosecution of returnees under the Immigration and Emigration Act as expressed in a July 2013 report. It was submitted that there is a real chance of a returnees, particularly Tamil returnees being harshly treated by the authorities for having departed illegally. It was submitted that laws are not only harsh, but are arbitrarily applied in Sri Lanka. It was submitted that, during the on-arrival series of interrogations, or during the period of remand the applicant is at risk of Convention related persecution or serious harm. It was submitted that, even if the applicant were to escape a prolonged period of incarceration as a result of receiving a suspended sentence for conviction of an offence around his illegal departure, he would continue to remain vulnerable to other forms of harm, including re-arrest and detention; being harmed by Sinhala inmates; and abduction and extortion by armed groups. It was submitted that returnees are viewed with suspicion and are generally seen as traitors. They are also subjected to ‘systematic media attacks’.
Finally the submission provided a detained critique of DFAT’s country reports in relation to Sri Lanka, including DFAT’s Thematic Report of 3 October 2014.
The Relevant Law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has had regard to DFAT’s Country Information Report – Sri Lanka (3 October 2014); Country Information Report – Sri Lanka (16 February 2015); Country Information Report – Sri Lanka (18 December 2015) and Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam (3 October 2014).
Analysis, Reasons and Findings
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Army, the CID and the Pillaiyan group
The applicant claims that, in January 2010, he was returning home from work when he was stopped by the CID and questioned. A person from the Pillaiyan group was accompanying the CID. Two weeks later the applicant began receiving threatening phone calls from this person, asking the applicant to pay him money if he wanted protection against the CID. The applicant claims that he received phone calls of this nature once or twice a week. However, he did not make any payments. He claims that subsequently the CID visited his home on two separate occasions in October 2010 and February 2011, but he was not home on either occasion. The CID proceeded to threaten his [various relatives] who were at home at the time. The applicant claims that that he began noticing a white van outside of his house and, in May 2011, someone threw stones at his house, breaking windows. In July 2011, he was on his way to work when he was followed by a white van. He ran to his workplace and those who were pursuing him left. In August 2011, he lodged a complaint with [Agency 1] in relation to the stone throwing incident. He claims that he became increasingly scared and, in November 2011, he left his house to live in rented accommodation in the nearby area of [Town 1]. He remained there until his departure from Sri Lanka.
The Tribunal has difficulty accepting the applicant’s claims. The applicant was unable to provide any persuasive reason as to why the CID would target him in this manner. The country information before the Tribunal suggests that persons with certain profiles, other than prior residency within an area controlled by the LTTE, may be at risk of harm. Those at risk appear to be persons who have a certain level of LTTE links.[1] DFAT also refers to the Guidelines in emphasising that a person’s real or perceived links with the LTTE may give rise to protection. However, whether a person is at risk of harm depends on the nature of the links.[2] The decision of United Kingdom’s Upper Tribunal on Immigration and Asylum in GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) refers to similar categories of persons at real risk of persecution or serious harm on return to Sri Lanka.[3] The applicant has given evidence that he was not affiliated with any political party, movement or organisation and was not engaged in any political activities.
[1] UNHCR, UN High Commissioner for Refugees (UNHCR), UNHCR Eligibility Guidelines for
[2] DFAT, Thematic Report, People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014. Those persons include persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka; former LTTE combatants or cadres; former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE; and persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
[3] Upper Tribunal, GJ and Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC).

At the second hearing, when asked why the CID had spent so much time and resources to monitor him over a long period of time, he stated that the CID and paramilitary groups wanted to find youngsters to accuse them of being with LTTE. The Tribunal does not find this explanation plausible. In any event, if the CID and the Pillaiyan group wanted to accuse the applicant of being associated with the LTTE and harm him on that basis, they had ample opportunity to do so. The applicant did not claim that any such accusation was levelled against him in any of his claimed encounters with the CID or the Pillaiyan group. In addition, the Tribunal has found no information in any of the sources consulted to suggest that the authorities target young people in the manner the applicant claims he was targeted in order to, at some point, accuse him of being an LTTE supporter.
At the second hearing the applicant also indicated that the authorities might have been motivated by the 2006 incident. The Tribunal accepts that in January 2006 when the applicant was on a beach with friends for a party, the Sri Lankan Army (SLA) arrived and eventually shot [a number of] school children. The army monitored the funeral and the protests in the aftermath of the event. The Tribunal accepts that the applicant was questioned on two separate occasions by the SLA and the interrogation was videotaped. In his oral evidence to the Department and to the Tribunal the applicant indicated that he was not singled out and that many people in his village were similarly questioned. The applicant did not face any further consequences and, in 2007, he travelled to [Country 1]. He did not encounter any difficulties departing Sri Lanka on that occasion. Nor did he encounter any difficulties upon returning to Sri Lanka in 2008. When this was put to him at the second hearing, he stated that people are not harmed at the airport but after they go back to their houses. The applicant, however, faced no other problems until January 2010 when, according to his claims, the CID and members of the Pillaiyan paramilitary group began harassing him. Whilst the applicant suggested that the CID and the Pillaiyan group might have been motivated by the 2006 incident and the applicant’s interrogation at that time, the Tribunal is not satisfied that this is the case. As already noted, other than being questioned on two separate occasions following the 2006 incident, the applicant faced no other problems or difficulties before his departure for [Country 1] in 2007 and in the two years following his return from Sri Lanka. The Tribunal is of the view that, if the authorities had any concerns in relation to the applicant in connection with the 2006 incident, they would have acted upon these concerns before January 2010. The Tribunal is not satisfied that the applicant’s presence during the murder of the school children and his subsequent questioning by the authorities in connection with the event had made him a suspect or a target of harm for the reason of his race, religion or imputed political opinion.
Finally, the applicant stated in his protection visa application that the reason for the harassment he claimed to have faced was partly because he had spent time out of Sri Lanka and they might have thought that he is a wealthy person who could give them money. In his oral evidence to the Department and to the Tribunal, he also claimed that he was threatened by [Mr A] who asked him for money in exchange for protection. The applicant claimed that he had resolutely refused to give the money demanded. However, as it was put to the applicant at the second hearing, it was odd that no serious consequences had flowed. It is a notorious fact that the CID and the Pillaiyan group have the resources and the capacity to act with impunity and cruelty towards intended targets. However, other than the incidents referred to above, the applicant did not claim that any further action was taken by those he claims were targeting him.
Whilst the applicant claimed that he was continuously monitored or followed, no attempts were made to apprehend or physically harm him between January 2010 and November 2011. According to his own evidence, [Mr A] and the CID clearly knew where he lived, as they were monitoring him. However, on the two occasions on which the applicant claims they went to his house, he was not there. If he was being ‘actively surveilled’ by the CID or paramilitary groups, it would be reasonable to assume that they would have been well aware of his movements, including at the time when he claims to have gone to [Town 1] to live away from his house. The applicant did not claim to have resided anywhere other than at his home between January 2010 and November 2011. The Tribunal, therefore, considers it highly implausible that the CID or members of Pillaiyan group had decided to approach his house to locate him when he was not at home. The Tribunal is of the view that if the applicant was being targeted for extortion, those extorting him had the means to enforce any threats directed at him for not meeting their demands.
The applicant submitted to the Department a copy of a document purportedly issued by [Agency 1]. The document refers to the complaint number, the date it was received ([in] August 2011), the name of the complainant ([the applicant’s family name]) and ‘category’. In relation to the latter the document merely states ‘threat Mr [applicant’s first name]’. No further information is provided in the document in relation to the threat, its nature, who had directed the threats or when the complainant might have been subjected to the threat. Other than the fact that the applicant might have lodged a complaint with [Agency 1], the Tribunal is unable to place any weight on the document in supporting the claims he has made that he will be seen as ‘an anti-government’.
For the above reasons, the Tribunal has significant concerns in relation to the credibility of the applicant’s claims. The Tribunal, therefore, does not accept that the applicant was approached and questioned by the CID and the Pillaiyan group about the LTTE. The Tribunal does not accept that he was continuously threatened or that demands were made for him to make payments to the CID and the Pillaiyan group. The Tribunal does not accept that the CID visited his house on two occasions, threatening his [various relatives]. The Tribunal does not accept that he was monitored, followed or ‘surveilled’. The Tribunal does not accept that stones were thrown at his house or that his property was damaged. The Tribunal does not accept that he had left his house or had lived in hiding or kept a low profile between August 2011 and May 2012. The Tribunal does not accept that he had left his job for the reasons he has provided. The Tribunal does not accept that the SLA, the CID or the Pillaiyan group have any adverse interest in the applicant.
The Tribunal is not satisfied that the applicant has a profile that would subject him to a real chance of serious harm for the reason of his actual or imputed political opinion. The Tribunal is not satisfied that the applicant will be imputed to be an LTTE member or supporter. The Tribunal is not satisfied that he will be perceived to be a collaborator, to hold anti-government views or to hold pro-LTTE links of a nature that would put him at a risk of serious harm. The Tribunal has rejected the applicant’s claims that he was a victim of extortion in the past and it is not satisfied that there is a real chance that he would be subjected to extortion if he were to return to Sri Lanka. The Tribunal is not satisfied that the applicant’s presence during the murder of the school children in 2006 and his subsequent questioning by the authorities in connection with the event would expose him to a real chance of serious harm. The Tribunal is not satisfied that there is a real chance that the applicant will be seriously harmed by the Sri Lankan authorities, paramilitary groups or anyone else for the reason of his actual or imputed political opinion or membership of any particular social group, including young Tamil males from Sri Lanka if he were to return to Sri Lanka.
Being Tamil
The applicant has claimed that he fears persecution on the basis of his race as a Tamil. The Tribunal accepts that historically Tamils have faced discrimination in Sri Lanka, including barriers to education and employment. The sense of discrimination among the Tamil community was a primary driver of the civil conflict that gripped the country for many years.[4] According to DFAT’s most recent country information report, partly as a result of the conflict, successive Sri Lankan governments have made some efforts to address these ethnic and linguistic tensions through constitutional, legal and policy changes. There are no official laws or policies in Sri Lanka that discriminate against Tamils on the basis of their race, including in relation to education, employment and access to housing. There is also no government-sanctioned discrimination in the implementation of laws and policies in Sri Lanka. While Tamils can sometimes have difficulty communicating with the police, military and other Government authorities, DFAT has assessed that these practical difficulties are not due to official discrimination as such, but are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict and the legacy of previous discriminatory language policies.[5] The Tribunal accepts that Tamils continue to face a level of societal discrimination in Sri Lanka. The Tribunal also accepts that if a Tamil falls within the risk profiles referred to earlier, he or she is likely to be more vulnerable to ‘arbitrary detention, abductions and forced disappearances’.[6] However, the December 2012 UNHCR Guidelines stated that in light of the improved human rights and security situation in Sri Lanka ‘there is no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country’.[7]
[4] DFAT, Country Information Report – Sri Lanka, 18 December 2015.
[5] Ibid.
[6] UNHCR, n1, above.
[7] Ibid.
At the second hearing the applicant responded to the country information put to him by stating that the CID followed him and they have his information and if he goes back there are records saying that they are looking for him. The Tribunal, however, has found that the applicant does not have a profile which would put him at risk of serious harm for the reason of his imputed political opinion. On the basis of the evidence before it, including the country information referred to above, the Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed on account of his race as a Tamil alone if he returns to Sri Lanka. The Tribunal is not satisfied that the applicant faces a real chance of being seriously harmed by the Sri Lankan authorities or anyone else on account of his race as a Tamil if he returns to Sri Lanka.
Failed Asylum Seeker and Illegal Departure
The Tribunal has considered the two extracts from the Edmund Rice Centre report in the applicant’s representative’s submission regarding the treatment of Tamil men returning to Sri Lanka from Australia. The extracts refer to the case of Gopal, a failed asylum seeker who was returned to Sri Lanka in 2014, and the case of ‘S’, who was returned from Australia in 2010. According to the report Gopal was detained upon arrival and subjected to intensive interrogation and mistreatment. S was also detained upon arrival and although he was released a short time later, he was variously detained and interrogated by CID officers. He was mistreated during these interrogations. However, no information has been provided in relation to the precise circumstances, background or profile of these two individuals; or why they were singled out.
The Tribunal accepts that the applicant has departed Sri Lanka illegally and that he will be returning to Sri Lanka as a failed asylum seeker. Whilst some sources suggest ‘a period of residence in the UK or other Western country may itself constitute a risk factor’ for torture,[8] other sources, including more recent sources such as DFAT, suggest that the principal focus of the authorities has been ‘persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms’.[9] Similarly, Freedom from Torture reported in 2012 that it was a combination of residence in the UK and an actual or perceived association with the LTTE which placed individuals at risk of torture and inhumane and degrading treatment. It stated that those at particular risk included Tamils with an actual or perceived association with the LTTE, including those returning from abroad.[10] The UK Upper Tribunal also found certain categories of persons to be at real risk of persecution or serious harm on return to Sri Lanka.[11]
[8] See, for example, Immigration and Refugee Board of Canada, Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; information on specific asylum cases, including the Tamil asylum-seeker boat that stopped in Togo, the return of Sri Lankan asylum seekers from Australia in 2012, and any cases of voluntary repatriation (August 2011-January 2013), 12 February 2013.
[9] UK Home Office, Country Policy Bulletin – Sri Lanka, October 2012.
[10] Freedom from Torture 2012, Sri Lankan Tamils tortured on return from the UK, 13 September, pp.1-2,
[11] Upper Tribunal, n3, above. The Upper Tribunal identified the following categories: (a) Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism within the diaspora and/or a renewal of hostilities within Sri Lanka; (b) Journalists (whether in print or other media) or human rights activists, who, in either case, have criticised the Sri Lankan government, in particular its human rights record, or who are associated with publications critical of the Sri Lankan government; (c) Individuals who have given evidence to the Lessons Learned and Reconciliation Commission implicating the Sri Lankan security forces, armed forces or the Sri Lankan authorities in alleged war crimes. Among those who may have witnessed war crimes during the conflict, particularly in the No-Fire Zones in May 2009, only those who have already identified themselves by giving such evidence would be known to the Sri Lankan authorities and therefore only they are at real risk of adverse attention or persecution on return as potential or actual war crimes witnesses; and (d) A person whose name appears on a computerised “stop” list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant. Individuals whose name appears on a “stop” list will be stopped at the airport and handed over to the appropriate Sri Lankan authorities, in pursuance of such order or warrant.
In his submission of 17 February 2016, the applicant’s representative referred to a report by the International Truth and Justice Project, which is based on the testimonies from 20 victims who were abducted during the past year. It was submitted that all victims were Tamil and many had come from other countries. However, the report clearly states that ‘Tamils with tenuous links to the LTTE or low-level cadres continue to be targeted, along with their families’. The applicant was not a cadre and did not have any links to the LTTE. The Tribunal has found that the applicant was not of any interest to the authorities as an LTTE supporter or member and that he will not attract any adverse interest from the authorities or paramilitary groups if he were to return to Sri Lanka.
According to DFAT, Tamils arriving in Sri Lanka are subject to the same entry procedures as any other citizen. Returnees, regardless of ethnicity, may be questioned by both the police and the State Intelligence Service and checked against intelligence databases.[12] In August 2011, the Immigration and Refugee Board of Canada (IRBC) reported on the treatment of Tamils returning to Sri Lanka, including failed asylum seekers. The report cited information provided by the Canadian High Commission in Colombo, which noted that ‘[t]he screening process is the same for all persons returning to Sri Lanka – whether voluntary or by escort. The process is not impacted by ethnicity’.[13]
[12] DFAT, Report 1446 – RRT Information Request: LKA40999, 22 October 2012; and DFAT, Country Information Report No. 12/67, 29 November 2012, CX299951. See also UK Home Office, Sri Lanka - Country of Origin Information (COI) Report, 7 March 2012, paragraphs 25.29-25.35, 25-37-25.39, 25.42-25.44; UK Home Office, Sri Lanka - Bulletin: Treatment of Returns, December 2012, paragraphs 3.03-3.04, 3.08-3.25, 3.32-3.42.
[13] Immigration and Refugee Board of Canada, Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions, upon return, for not having proper government authorization to leave the country, such as a passport’, LKA103815.E, 22 August 2011 CIS29896.
In its Eligibility Guidelines, the UNHCR has also referred to questioning of returnees by Immigration officials and the State Intelligence Service. The UNHCR indicated that returnees may receive further contact from the authorities after arriving in their village of destination:
UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further “registration”. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military.^[14]
[14] UNHCR, n1, above.
In its 18 December 2015 report, DFAT continued to indicate that Sri Lankan returnees are treated according to standard procedures regardless of their ethnicity.[15] In November 2012 DFAT advised that it had not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. DFAT stated that it had spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees and that NGOs had told DFAT that they had not witnessed or received any allegations of mistreatment from any of the Tamil Sri Lankans they had facilitated. DFAT referred to advice from the British High Commission in Colombo to the effect that they had received no substantiated cases of mistreatment on return for their returnees.[16] DFAT has also stated that NGOs had not raised specific issues regarding the treatment of Tamils returning to the north and east. It stated that NGOs had not raised with them issues concerning the treatment of Tamils who had lived in other countries where the LTTE was active for extended periods.[17]
[15] DFAT, Country Information Report – Sri Lanka, 18 December 2015.
[16] DFAT, Country Information Report No. 12/67, n12, above.
[17] DFAT, MRT/RRT Information Request: LKA41452, DFAT Report 1478, 28 February 2013.
DFAT has stated:
5.32 Between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, because it is their place of origin, where they have existing family links and the relatively lower cost of living compared to Colombo and other urban areas in the south.[18]
[18] DFAT, n4, above.

On the basis of the evidence before it, the Tribunal is not satisfied that the combination of the applicant’s ethnicity and his living overseas would specifically impute him with having links to the LTTE or expose him to a greater level of interest by the Sri Lankan authorities. The Tribunal is not satisfied that, as contended by the applicant’s representative in his submission of 17 February 2016, the applicant’s leaving Sri Lanka will be seen as incriminating behaviour proving him to be linked to the LTTE. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reasons of any pro-LTTE or anti-government political opinion that may be imputed to him because he has lived in Australia or because he has sought asylum in Australia. The Tribunal is not satisfied that there is a real chance that the applicant will be persecuted for reason of his membership of the particular social group of failed Tamil asylum seekers, or because he is a Tamil who left Sri Lanka illegally and who has applied for asylum in Australia. The Tribunal is not satisfied that there is a real chance the applicant will face serious harm as a result of any follow-up by any other authorities or agencies in his home area or elsewhere.
Concerning the applicant’s illegal departure from Sri Lanka, according to DFAT, entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). With regard to illegal departure DFAT has advised as follows:
5.27 Article 14(1) (i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (the I&E Act). Under Sections 34 and 45(1) (b) of the Act, it is an offence to depart other than via an approved port of departure, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees (around AUD 2,000). In practice, penalties are applied on a discretionary basis and are almost always a fine.
5.28 Returnees are generally considered to have committed an offence under the I&E Act if they departed Sri Lanka irregularly by boat. If a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.[19]
[19] Ibid.
The information consulted by the Tribunal suggests that the most likely penalty for leaving Sri Lanka illegally would be a fine, unless the person is suspected of facilitating or organising a people-smuggling venture.[20] DFAT advised in October 2012 that, under Sri Lankan law, people who depart from any place other than an approved port of departure and/or depart without valid travel documents can be charged with an offence under the I&E Act. DFAT reported that, for offences committed under the Act, a prison sentence from one to five years and a fine of LKR 50,000 to LKR 200,000 may be applicable. DFAT reported in October 2012 that this was seldom enforced. It also indicated that, in practice, people being intercepted on people smuggling boat ventures were not given a custodial sentence but issued with a fine for the offence of departing Sri Lanka illegally. This was to act as a deterrent.[21] Whilst, later in 2012, DFAT advised that since 2 November 2012 Sri Lankan irregular maritime arrivals returned from Australia have been charged under the law for offences related to their irregular departure,[22] in its December 2015 reports DFAT stated that it had been informed in July 2015 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines had been issued to act as a deterrent towards joining boat ventures in the future. Fine amounts vary on a case-by-case basis and can be paid by instalment.[23]
[20] Ibid.
[21] DFAT Report 1446, n12, above.
[22] DFAT Report No. 12/67, n12, above.
[23] DFAT, n4, above.
Information before the Tribunal indicates that returnees charged with offences related to illegal departure may be held on remand for a period before being released on bail.[24] DFAT has advised that returnees are arrested and held at the airport for up to 24 hours. They are then produced before a magistrate at the first available opportunity after investigations are completed, after which custody and responsibility for the individual shifts to the courts or prison services. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, returnees are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor. Returnees may sometimes need to wait until a family member comes to court to collect them. If bailed, there are rarely any conditions, and if there are, they are imposed on a discretionary basis. An accused will only need to return to court when the case against them is being heard, or if summonsed as a witness in a case against the organiser/facilitator of a boat venture. There is no general requirement to report to police or police stations between hearings.[25]
[24] See, for example, Doherty, B, Asylum denied, a penalty awaits at home‖, The Sydney Morning Herald, 8 December 2012,
[25] DFAT, n4, above.
The evidence before the Tribunal does not suggest, and the Tribunal is not satisfied, that there is a real chance that the applicant will be detained for a prolonged period of time as a penalty for illegal departure. The Tribunal finds that any period of detention will be short and confined to, at most, a few days. The Tribunal accepts that high-profile former LTTE members who are suspected of committing serious crimes, including terrorism offences are at risk of torture. According to DFAT, this is due in part to the use of torture to extract information or confessions from suspects, and the extended period these people may spend in pre-trial detention. There is no persuasive evidence before the Tribunal to suggest that the applicant would be detained for longer periods of time for any reason. There is no information before the Tribunal to indicate that returnees held in remand awaiting bail hearings have been subjected to torture or ill-treatment.
At the second hearing, the applicant responded to the country information put to him by stating that they have his information and they may release him but they might follow him later. The Tribunal has already found that the applicant is not of interest to the authorities and would not attract adverse attention from the authorities. The Tribunal is not satisfied that he will be imputed with a political opinion because of his illegal departure or treated differently because he is a member of a particular social group of failed asylum seekers or any other particular social group apparent on the face of the evidence.
The Tribunal accepts that the applicant may be questioned at the airport, charged and placed in remand for a short period. The Tribunal also accepts that prison conditions in Sri Lanka may be poor. However, as it was put to the applicant at the second hearing, the sources consulted suggest that the treatment the applicant might face upon his return applies to all persons, regardless of race or religion. Tamils are not singled out. The evidence before the Tribunal does not establish, and the Tribunal is not satisfied, that the applicant will be singled out for torture or mistreatment, that he will be subjected to excessive punishment or that he will be treated any differently if he is placed in remand for a short period because he is a Tamil, a young Tamil male or for any other Convention reasons.
The Tribunal is not satisfied, therefore, that being questioned, arrested, charged and detained for a short period in poor conditions, which may include overcrowding and poor sanitation, amount to systematic and discriminatory conduct as required by s.91R(1)(c). The Tribunal finds that the processing of returnees and any penalties that may be imposed on the applicant are the result of the non-discriminatory enforcement of a law of general application.
Based on all of the evidence before it, considered individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicant would face serious harm amounting to persecution for the Convention reasons of his Tamil race/ethnicity, his actual or imputed political opinion or his membership of a particular social group if returned to Sri Lanka.
Complementary Protection
For the reasons already provided, the Tribunal does not accept that the SLA, the CID or the Pillaiyan group have any adverse interest in the applicant. The Tribunal is not satisfied that the applicant has a profile which would subject him to a real risk of significant harm arising from his actual or imputed pro-LTTE political opinion. The Tribunal is not satisfied that the applicant will be imputed to be an LTTE member. The Tribunal is not satisfied that he will be perceived to be a collaborator, to hold anti-government views or to hold pro-LTTE links of a nature which would put him at a risk of serious harm. The Tribunal is not satisfied that the applicant has a profile which would subject him to a real risk of significant harm arising from his actual or imputed political opinion. The Tribunal has rejected the applicant’s claims that he was a victim of extortion in the past and it is not satisfied that there is a real risk that he would be subjected to extortion if he were to return to Sri Lanka. The Tribunal is not satisfied that the applicant’s presence during the murder of the school children in 2006 and his subsequent questioning by the authorities in connection with the event would expose him to a real risk of significant harm. The Tribunal is not satisfied that there is a real risk that the applicant will be significantly harmed by the Sri Lankan authorities, paramilitary groups or anyone else arising from his actual or imputed political opinion or membership of any particular social group, including young Tamil males from Sri Lanka or failed asylum, seekers if he were to return to Sri Lanka.
As noted above, the Tribunal accepts that Tamils continue to face a level of societal discrimination in Sri Lanka. However, the Tribunal is not satisfied that the discrimination the applicant may be subjected to amounts to any form of significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that the applicant faces a real risk of being significantly harmed by the Sri Lankan authorities or anyone else due to his race as a Tamil.
The Tribunal accepts that the applicant would likely face arrest on charges of illegal departure. Consequently, he could be placed in remand for a relatively brief period while awaiting a bail hearing and would later be fined if found guilty. The Tribunal, however, is not satisfied that there is evidence of mistreatment of returnees while in remand. The applicant stated at the second hearing that he would be prepared to return to Sri Lanka if the Australian Government guaranteed his safety. As noted above, there have been large numbers of reported involuntary and voluntary returnees to Sri Lanka. The majority of these returnees are Tamils who departed Sri Lanka illegally by boat. There have been no persuasive reports of such persons suffering significant harm as defined by s.36(2A). The applicant did not claim, and the Tribunal is not satisfied, that he would be exposed to significant harm by virtue of the fine that may be imposed on him upon being returned to Sri Lanka. Nor did the applicant claim or provide persuasive evidence to suggest that he would be unable to pay the required money to make bail. The Tribunal is not satisfied that there is a real risk that the applicant will be subjected to torture, or any other form of, mistreatment amounting to significant harm upon his arrival; during or as a consequence of any questioning at the airport or during any period which he may spend in prison or detention on remand upon his return. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm during any period which he may spend in prison on remand.
The Tribunal has considered the department’s PAM3 Refugee and humanitarian - Complementary Protection Guidelines in relation to imprisonment/prison conditions. However, the Tribunal is not satisfied that the detention conditions the applicant would most likely face in relation to his illegal departure if he were to be remanded for a short period of time, including overcrowding and poor sanitary conditions, amount to any form of significant harm as contemplated by s.36(2A). In addition, there is no evidence before the Tribunal to suggest that there is any intention to cause the applicant suffering by virtue of those conditions. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prisons during any period which he may spend in detention on remand.
For the reasons provided above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1). The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering or pain or suffering, either physical or mental, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty.
The Tribunal, therefore, is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Shahyar Roushan
Senior Member

Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December 2012, HCR/EG/LKA/12/04,

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1309582 (Refugee) [2016] AATA 3645

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[2016] AATA 3645

24 March 2016

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